Comeback of 'secret trial' provision in CPC 'extremely worrying'

The government’s attempt to reintroduce a provision allowing secret trials to the Criminal Procedure Code is of extreme concern, said Lawyers for Liberty.

This is especially since the same provisions - new sections 265A, 265B and 265C - were withdrawn when they were first introduced in an amending Bill in 2013, following strong opposition.

“These new provisions relating to 'protected witnesses' essentially allow for witnesses to testify in secret where the accused person and his/her counsel would not be able to see, hear or cross-examine the witnesses.

“Such secrecy is repugnant to the very basic foundation of our criminal justice system that demands a fair trial.

“That is, that justice must be done openly and transparently; the accused must be afforded an opportunity to challenge the evidence presented; and the guilt against the accused must be proven beyond a reasonable doubt,” LFL executive director Eric Paulsen said.

Paulsen also raised concern that the amendments tabled in Parliament today include the removal of judicial discretion.

This is on the discretion to discharge or impose a binding-over sentence for offenders charged with “serious offence” or those charged under the Domestic Violence Act.

A binding-over sentence is usually reserved for first-time or young offender, whereby the offender is set free but remains under watch for good behaviour in a stipulated period. The judge can impose a fine if an offence is committed during the period.

Paulsen said judges must be allowed to decide appropriate sentences for individual cases, based on the different facts of the case and the offender’s circumstances.

“Judges are not automatons designed to sentence mechanically,” Paulsen said.

“If the sentence in a particular case is too lenient or insufficient, the appropriate recourse is to appeal the sentence, not to impose a blanket straightjacket on judicial discretion in sentencing.

“To deprive the judiciary of such discretion and to force them to impose harsh or custodial sentences is an unnecessary fetter on their discretion and interferes with their independence and justice,” he said. -Mkini